WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

85.— (3) A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

Elliot Lake Court File No.: 61/2004-03 Date: 2014-07-14

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C. 11

Between:

Children's Aid Society of Algoma John Rossi, for CAS of Algoma

— And —

L.H. Unrepresented mother

R.P. Douglas Kearns, for the Respondent father

Heard: July 11, 2014

Before: Kukurin J.

Decision

[1] Introduction

This is a decision on a motion (at Tab 2) brought by the applicant society for temporary care and custody of the child, H. She will be ten years old in two weeks. The society is also seeking an interim order for reasonable access to the child by her father, but subject to a number of terms and conditions which essentially will permit the society to determine what is reasonable. The whereabouts of the mother of the child have only recently been ascertained and she is not yet served. The father, with whom the child has been living in the community of Iron Bridge for the last eight years, opposes the society's motion and asks that the child be placed in the temporary care and custody of a family in his community, and that he be permitted to have access visits with his child.

[2] Main Issues

The main issue raised in this motion has to do with the 'kin assessment process'. More specifically, it raises the question of whether the court can or should make an order for temporary placement with members of the community before a kinship assessment has been completed on the proposed temporary caregivers and custodians. A secondary but integral issue is how does the court go about making this determination – what criteria does it apply?

Background

[3] Historical Context

The background is of some relevance to the issues. The society has been involved from even before H.'s birth in 2004. Its initial involvement was primarily because of protection concerns arising from the inadequacy of parenting by the mother. The society commenced a child protection application in 2004. A finding was made that the child was in need of protection. Ultimately, the father was awarded sole custody in January 2008 pursuant to an order made under s.57.1 of the Child and Family Services Act (the "Act"). The society closed its file. The mother at some point moved away and has not been a factor in the child's life. The father has raised the child as a single parent. However, this has not been without difficulties and consequent concerns of the society about how she was being parented. For purposes of this motion, it is not necessary to fully detail these concerns at this point. It is sufficient that the father concedes that he is not currently able to parent her adequately, and that he is not seeking a return of the child to his care immediately. He is content that she be placed elsewhere, but not in foster care with the society.

[4] Apprehension and Initial Placement

The child was apprehended on June 5, 2014 in Iron Bridge. She was placed in a foster home. Where she is living now was not disclosed but it does not appear to be in the community of Iron Bridge. The child continued to attend her school in B[…] after apprehension. Presumably, her foster home is not all that far away from the home of her father.

[5] Service and First Court Date

The father was served on June 9, 2014. The application (at Tab 1) and temporary care and custody motion (at Tab 2) were first returnable on June 11, 2014. Not surprisingly, the father was not represented by counsel, nor had he filed any evidence on that first return date. An interim, without prejudice order was made granting temporary care and custody to the society and giving the father reasonable interim access subject to a number of conditions. What that access has turned out to be is not spelled out in the evidence. However, it is a reasonable inference that it consists of one, three hour long weekly visit, fully supervised by the society, at a location specified by the society, which I suspect is at its access centre in B[…] River.

[6] Adjournments

The motion of the society (as well as its application) was adjourned to June 23, 2014, "for s.51 hearing". For those familiar with Ontario child protection law, a section 51 hearing is a hearing to determine the temporary care and custody placement of the child in the case. It was further adjourned on that date to July 11, 2014. No request was made to me to adjourn this motion, and accordingly, counsel made their submissions to me today.

The Father's Proposed 'Kin' Caregivers and Custodians

[7] Background of Proposed Caregivers

The father proposes that H. be placed in the temporary care and custody of P.C. and his wife of 34 years, R.C. They have resided in Iron Bridge for over thirty years. They have a three bedroom home where they have lived for twenty years. They have four adult sons between ages 24 and 33 all of whom live independently. Mr. P.C. has been the pastor of the Gospel Fellowship church since they moved to the community in 1981. Mrs. R.C. is an educational assistant at B[…] school.

[8] Relationship with the Child

In fact, the child, H. is one of the children with whom Mrs. R.C. works at the school on a regular basis. In addition, H. has been attending the Gospel Fellowship church for about six years, escorted by one of the parishioners, as H.'s father is not a member. H. has participated in Sunday services as well as in other clubs through the church. Mr P.C. deposes that neither he nor Mrs. R.C. have a criminal record, and further, that their family has never been involved with the Children's Aid Society. Both are willing to accept temporary care and custody of the child and to abide by any court imposed conditions. Moreover, they are willing to supervise paternal access if that is necessary.

Position of the Society

[9] Society's Arguments Against Immediate Placement

The society's position is that the court should defer making any temporary care and custody order different from what is currently in place on a "without prejudice" basis until the kin assessment process has been completed and the society has had a chance to re-assess its position with respect to placement with the C. It may well agree to this placement if the assessment turns out to be favourable. What the court should not do, it argues, is place the child with the C. family now. It cites the J.F. death in 2006, the subsequent conviction of his maternal grandparents, his "kin" caregivers, of second degree murder, and a report (not filed in the present case) following the inquest that highlighted the complexities in the issues in kinship caregiving.

[10] Concerns Regarding Access Supervision

If the child is moved to the C. home, the court should not, says the society, assume that Mr. and/or Mrs. R.C. will be automatically approved by the society as access supervisors for the father's access. This may impact on what paternal access the child may have. Currently, the existing order provides that paternal access is subject to supervision, in the discretion of the society, by the society, or by a person approved by the society. The order also provides that the location of access is to be approved by the society.

[11] Status Quo Arguments

In short, the society asks the court to hold off on any changes and wait for the assessment process to run its course. It is underway, and there is no pressing urgency in upsetting the status quo. In fact, the society argues that there have been improvements in the child's hygiene, her appearance and her attitude since she has been in foster care, and, although she can be confrontational at times, she is doing well in the foster home.

The Law

[12] Test for Temporary Care and Custody

The test for determining the temporary care and custody of a child who is the subject of a child protection case is found in s.51(3) of the Act. The onus on this test always falls on the society. It must not only satisfy the court that reasonable grounds exist to believe that H. is likely to suffer harm if returned to her father's care, it must also persuade the court that reasonable grounds exist to believe that she cannot be adequately protected by an order of the court if she is so returned. The society has to meet both parts of this two part test, failing which the child must be returned to whoever had charge of the child prior to the society's application.

[13] Placement Options

In the present case, the father appears to concede that the society has met both parts of this two part test. I agree that it has. The Act gives the court several options in the kind of temporary care and custody order it can make when the hearing of a child protection application is being adjourned, as it is here. The first two are non-removal orders, which means that the child remains with the person who had charge of the child. That is not happening here. The remaining two options are placement with the society [s.51(2)(d)], or placement with someone other than the society and other than the person who had charge of the child immediately before the society's intervention [s.51(2)(c)]. Either of these would constitute a removal order.

[14] Contest Between Placement Options

It is a contest at this point, between a s.51(2)(c) order placing H. with the C., and a s.51(2)(d) order placing her with the society. There is no specific criterion in s.51(2) of the Act that provides any guidance in choosing between possible removal orders.

[15] Priority for Kin Placement

However, there is now a not so recent provision in s.51(3.1) that creates some priority in favour of a s. 51(2)(c) placement over a s.51(2)(d) placement. In fact, this is not simply a statement of preference. It is a prohibition imposed on the court in making an order of placement with the society before the court considers an order of placement with "kin". Moreover, this subsection clearly sets out that the criterion the court is required to apply in choosing between society placement and kin placement is the "child's best interests".

[16] Best Interests Criteria

Where a determination or order is required by the Act to be made in the child's best interests, the court is required to take into account a number of circumstances that it considers to be relevant in the case. These are listed in thirteen separate clauses in section 37(3) of the Act, the last of which is "any other relevant circumstance" not covered by the first dozen of them.

Temporal Considerations

[17] Time as a Major Factor

Timing is at the heart of the main issue in this case. Time is a major consideration in the Child and Family Services Act, the statute that governs child protection proceedings. Time is also a factor in the procedure that applies to such proceedings. Much of that procedure is spelled out in the Act. However, some of it is found in the Family Law Rules (the "Rules") which also apply to such proceedings.

[18] Time Constraints in Child Protection Cases

The Act places time constraints on the players in child protection cases. In particular, when an apprehension of a child takes place, the society must bring the "matter" before the court within five days. Realistically, a society rarely has the ability to give a respondent parent the proper notice times of its motion and of its application that the Family Law Rules demand. The child protection court is required to make an order each time the hearing of the child protection application (ie the "matter") is adjourned. Parents rarely have time to file responding evidence before the first temporary order is made. The Act contemplates that a 'temporary care and custody hearing' will take place at which the court will make a determination that will persist until the hearing of the application is completed. Rule 33 of the Family Law Rules provides a timetable to govern these proceedings and expects that this "temporary care and custody hearing" will be completed within (a maximum of) 35 days from when the case is started. It is not difficult to see that there are great pressures on all concerned, including the court, in a child protection case, especially in its early stages. Where, as in the present case, the child has been involuntarily separated from her usual caregiver and custodian, there is the added pressure of determining where the child should be placed pending the hearing of the protection issue.

[19] Timeline of Events

I have already adverted to dates of various events in the timeline in this case. There are several others that are also relevant to the issue before the court:

• June 5, 2014 – date of apprehension
• June 9, 2014 – date of filing of child protection application and temporary care motion
• June 9, 2014 – date of service on the father
• June 10, 2014 – date of first court date
• June 10, 2014 – date of interim, without prejudice temporary care and custody and access order
• June 10, 2014 – The father indicates (at court) his wish for the C. to care for the child
• June 11, 2014 – Mr. P.C. confirms to society worker K. Cartmill his wish for kin care of the child
• June 11, 2014 – A kinship referral for the C. was submitted by Ms Cartmill to the society's kinship department for completion
• June 16, 2014 – Mr. P.C.'s affidavit (at Tab 5) is served on counsel for the society and states that the C. have no criminal record and have never been involved with the Children's Aid Society
• June 27, 2014 – Mr P.C. attends the society office and is given documents to complete his record checks with the police and vulnerable sector checks
• June 30, 2014 – Mrs. R.C. attends the society office and is given similar documents
• July 3, 2014 – Kinship Assessment worker M. McLarty has initial meeting at C. home to review kinship program and obtains consents from C. required for the assessment
• July 3, 2014 – The C confirm to Ms. McLarty that they have attended OPP station to complete their records check in addition to fingerprinting
• July 9, 2014 – Ms McLarty schedules initial interviews with C. for July 14, 2014
• July 9, 2014 – internal (society) records check was submitted for completion
• July 9, 2014 – Vulnerable records check and police check of the C. is still pending and uncompleted, requires Mr P.C. to provide fingerprints, and this may require more time
• July 11, 2014 – arguments heard on temporary care and custody and paternal interim access claims
• July 14, 2014 – date for initial interview of C. by Ms McLarty
• July 21, 2014 – Next court date set for decision on motion and to set next step for application

[20] Timing Question

A month has passed since the society was first alerted of the father's wish for placement of the child with "kin". While some steps have been taken by the society and the proposed kin placement individuals, the kin assessment process embarked upon by the society is still incomplete and the evidence gives no indication as to when it might be completed. Should the court have to wait for this assessment to be completed before making the order for temporary care and custody mandated by the Act and the Rules? Or should it wait until the kin assessment is completed?

The Kin Assessment Process

[21] Origin and Nature of Kin Assessment

The Child and Family Services Act has been said to contain a complete code of procedure for child protection cases. That is not exactly correct as the Rules also dictate some procedures. In addition to the statute, and the Rules, there are also Regulations made under the Act that touch on procedural requirements of certain processes in the area of child protection litigation. The words "kin assessment" appear nowhere in the statute or the Rules. In fact, the origin of the "kin assessment" as it is often referred to nowadays, is a Regulation made under the Act. In this regulation, the kin assessment is referred to as an "evaluation of the proposed care of the child". It appears that this requirement had its birth only in the year 2006. Prior to that time, prospective placement assessments of kin were unquestionably done by societies, but not necessarily mandated by Regulation, and not done in all cases where kin placement was a prospect.

[22] Components of Kin Assessment

What exactly does a kin assessment encompass. There was considerable information presented in the evidence filed by the society in this case. In the society's words:

"The potential family caregiver needs to complete a home study with the Society's Kinship department"

This involves a number of steps, but they are steps that the society is obligated to perform. How long before all of these steps are completed varies from case to case. The society says that "typically, it takes several weeks". If and when the home study is approved, the society would then embark on what seems to be a transition period within which there would be some access between the child and the prospective kin placement individuals leading at some point to a formal move of the child into their home.

[23] Regulatory Requirements and Delays

An examination of the regulatory requirements shows that a society conducting a kin assessment has to obtain consents from any prospective primary caregiver for a criminal record check, as well as for disclosure of information relating to himself or herself from any children's aid society or similar agency. Who actually does the footwork to request these is not stated in the regulation, but it is a reasonable inference that it falls on the shoulders of the society. This introduces into the process an unknown period of time, the length of which is dependent to a great extent on how fast the societies or police services from whom information is requested will produce it. Time is also a relevant consideration in how long it takes the requesting society to begin each step of what it is mandated to do under the regulation.

[24] Lack of Time Limitations

There is, not surprisingly, little in terms of time limitations imposed on a society for doing any step (or all steps) involved in this kin assessment process. Ontario Regulation 206/00 does not say when a society has to start the process, how long it may take to start or to complete any step in the process, or when it schedules any particular step in the process. In this case, for example, the society became aware of this kin placement request on June 10, 2014. It was not until July 9, 2014 that an internal society record check was even submitted, presumably to its own Kinship Assessment department, for completion. The society has scheduled its initial interview with the C. for July 14, 2014. Presumably, it intends to examine and assess their home at the same time. Why does it take over a month to set a date for these things to take place?

[25] Society Control Over Process Pace

In short, the society has a great deal of control over the kin assessment process and, in particular, the pace at which it progresses. Criminal records checks can result in delay over which a society may have no control, but part of the delay is contingent on when the request for this information was made. In this case, for example, the documents needed for submission for a criminal record check were not provided to Mr P.C. until June 27 and to Mrs. R.C. until June 30, 2014. Why it took over two weeks just to get these documents to the C. is not explained. It was not until July 3, 2014 that a formal request to the OPP was made for a criminal records check. It appears that there is a further delay on the part of the police who now require Mr. P.C.'s fingerprints.

[26] Outcomes and Further Delays

The kin assessment process can have one of only two outcomes. It may approve the proposed placement or it may not. If it does not, the parties may remain at odds on the issue of temporary care and custody and this determination is left for the court to make after arguments on the contested motion. The kin assessment is required to be "documented" not more than thirty days after the assessment is completed. Therefore, if it is going to be before the court as evidence on the contested motion, there may be a further delay in obtaining it, if it is to be obtained at all. It would be wrong to restrict the temporary care placement contest as always being between a society and a prospective kin caregiver. In many cases, there may be several kin competing for placement of the child, often from maternal and paternal extended families. Technically, the society may be mandated to do kin assessments for all of these claimants, even if they live far beyond the society's territorial jurisdiction. The possibilities for delay of the placement decision in such cases can be endless.

Role of the Court in Temporary Care and Custody Issues

[27] Society's Difficult Position

The interplay of the statute, the Rules and the regulations places the society in an unenviable position. It had to create a Kinship Assessment department within its structure. It has no option but to do kin assessments so long as the pre-requisites set out in the regulation are present. There is a great deal that it has to do for each assessment. Some of what it does takes a child protection worker away from his or her other duties. Someone has to convert the eventual report to written form. It would be surprising indeed if societies received additional and generous funding or personnel to take on these assessments. In fact, this society has made know its budgetary constraints, and this means, in common parlance that "something's gotta give". What often gives, and what may have given here is the frequency and duration and location of H.'s access visits with her father, to once a week for three hours. The society has not only these extra responsibilities, it has them subject to pressures from respondent parents, from potential placement kin, and certainly from the court.

[28] Court's Duty and Constraints

While the society may have a difficult position, at least it knows what it has to do. The court, on the other hand, is caught in a somewhat different crossfire. The Act imposes a duty on the court to consider if a kin placement is in the child's best interests before it makes a temporary care and custody order. It is required by the Act to make a temporary care and custody order each time the child protection application is before the court, including the very first time, which in this case was on the fifth day after H. was removed from her home. It is directed to conduct (and complete) a temporary care and custody hearing within 35 days of the start of a child protection case. How does the court do this? The answer has always been with evidence. However, the court does not go out and secure evidence. The court relies on evidence brought to it by the parties. Ultimately, the court has to make its determination of the care and custody of a child pending the hearing of the child protection application with the facts presented in the evidence that is before it at the time of such hearing.

[29] Impact on Parents and Child

Difficulties of a society and constraints on the court should rank somewhere below the repercussions of the child protection case on the parent and the child. This is accentuated many fold where there has been an apprehension. The family has effectively been fractured. The effects on the parent are often drastic. Here, for example, the father has lost some ODSP funding and the child tax benefit. It may seem crass to speak of money matters when so much more is at stake. However, to a father such as H.'s who is reported (even by the society) to be living at a subsistence level, money matters a lot. In addition, he has not only had restrictions imposed on him with respect to access, he has lost the only other member of his family who was in his care around the clock. His involvement as a party respondent in this child protection litigation likely is taking its toll on him as well.

[30] Impact on the Child

For the child, apprehension represents a drastic separation from all things familiar and familial. She has been placed in a foster home where she has never been before as far as is known. Her foster family members were likely complete strangers to her. She sees her father only once a week, and that is only for three hours maximum. Moreover, she sees him with a supervising presence constantly in the room or keeping an eye on them. She does not see him at their home or even in the community where they live. It is not known if she has any other contact with him. She has undergone a joint society-police interview in a sexual abuse investigation where she has been interrogated about her relationship with her father. Her school year is over and she does not even have the comfort of her usual school environment and her peers for the present. It is not even known if she attends the church where Mr. P.C. is the pastor. The evidence is clear that she and her father have a positive relationship. They both expressed how they missed each other at their first access visit. H. is not quite ten years old.

[31] Alternative Approaches

The question at this point is what should the court do. The simplest route would be to simply adjourn any decision and await the outcome of the kin assessment of the C., in the hopes that it will be favourable. At that point, there will likely be a consensus and a temporary care order made on consent. This is all contingent on a favourable assessment. Should it be unfavourable, who knows what will happen? The C. may well bow out and leave society foster placement as the only logical alternative. Or there may be a contested hearing, despite the pejorative assessment, on additional evidence and more arguments.

[32] Court's Decision to Proceed

The alternative is to decide the temporary care and custody of H. on the basis of the evidence that the court currently has, applying the criteria that the court is mandated to apply. My decision is to do the latter. Why? Firstly, the hearing date was first set for June 23, 2014. It did not proceed on that day. It was adjourned for hearing by me on July 11, 2014. No one asked me for an adjournment of the temporary care and custody hearing. I have already heard arguments of counsel on this hearing. Secondly, I have no assurance, not even a reasonable guess, when an assessment will be completed. Thirdly, an assessment will not necessarily magically resolve this issue. Fourthly, the status quo is not all that satisfactory especially for the child. Fifthly, I have a reluctance to move in the direction of permitting an assessment, especially one prepared by an adverse party in this contested case, to supplant the job that the Act says the court should do. Sixthly, there is already too much delay in child protection matters generally. Kin assessments are just one more element that adds to delay. In the context of this case, this is not a global delay in the case. Rather, it is a delay in deciding what is probably the most crucial aspect of the case while it is ongoing. Seventhly, the kin assessment is not something that is intended to assist the court. Rather it is a tool that has been devised to help or enable societies to make decisions about what position they will take on temporary placement of a child. Finally, this issue in this case is critical, but is not that momentous. This is not a contest of placement in a society foster home versus placement with a father from whom the child was apprehended. The alternative temporary placement proposed is much more palatable from just about any perspective than is a return to the father. Put another way, this is a placement that could work out quite well for all, and for the child in particular.

Consideration of Best Interests

[33] Best Interests Analysis Framework

The circumstances in subsection 37(3) of the Act are never considered in a vacuum. There is always some context in which they are to be factored into a judicial decision. The judicial decision in the present motion is whether the child's best interests are served by a temporary order for society placement or kin placement. A best interests analysis necessarily requires looking at the past, the present and the future, at least the immediate future up to the time a decision is made on the child protection application. Cultural background, religious faith, relationships and emotional ties are the outcome of past events. The child's level of development, the child's views and preferences, and continuity of care are circumstances of the present. Risk of harm, potential effects of disruption, the child's needs, and the effects of delay in disposition in the case look to the future. In this case, where there is a consensus that the child is not immediately returning to her father's care, another very relevant circumstance is how, when and where H. and her father are going to have contact with each other – or more succinctly, parental access.

[34] Safety as Primary Consideration

The criteria by which the court decides temporary care and custody are manifold. They are much more comprehensive than what a society's decision may be based on a kin assessment. Ontario Regulation 206/00 imposes the evaluation of the proposed plan for the child for a specific reason, namely:

"…to determine whether the person is capable of providing the child with a safe home environment."

[35] Safety Assessment Without Formal Assessment

Accordingly, insofar as the kin assessment goes, safety of the child in the proposed placement environment is the number one consideration. Can the court make this determination without the assessment? In this case, I believe it can. The evidence filed by the father, and even some filed by the society, portrays the C. as successful parents, law abiding citizens, with a great deal of experience raising their own children, and each holding responsible positions in the community. They have been co-operative with the society to date. They, in fact, have had considerable contact with the child H. in their respective vocations. There is not a scintilla of evidence that the society has presented that even hints that these proposed primary caregivers or their home presents an unsafe environment for the child. On the other hand, the evidence filed by the father is first hand evidence of Mr. P.C. that states unequivocally that neither he nor his wife have any police record or any Children's Aid Society involvement. I am not at all persuaded that safety of the child, if placed with the C., is likely to be compromised in any way.

[36] Society Supervision and Court Conditions

In addition, the Act does not allow an order for kin placement under s.51(2)(c) to be made without the placement being subject to the society's supervision. The society will have more than sufficient opportunity to observe and monitor the child in the C. home. The court can impose reasonable terms and conditions when making an order under s.51(2)(c) of the Act. In its submissions, the society has produced a list of fourteen such terms and conditions, all imposed on the C., and most addressed to ensuring the child remains safe. There appears to be no objection to any of the conditions it seeks. In addition, the child will be ten years old later this month. She is more than capable of communicating in any private visits the society may wish to hold with the child.

[37] Appropriateness of Kin Assessment

The society does not say that the C. are objectionable as temporary primary caregivers. What it says is that there is a prescribed procedure in a situation like this and the court should allow time for this procedure to run its course. I don't disagree that kin assessment is a good precaution. What is objectionable about the process is that it is a 'one size fits all' approach to evaluating potential kin placements, that it leaves no discretion in the society to dispense with this process, and perhaps more than anything, it takes too much time to do. There will be cases where the kin assessment should be completed before the proposed kin placement is judicially determined. There will also be cases, like the present one, where the decision of temporary placement can reasonably be made in the absence of such assessment.

[38] Comparative Analysis of Placements

Ultimately, the court has to determine temporary care and custody placement, and has to do this on the evidence it has, not on the evidence that may be coming. While safety of the child may trump other considerations, it does not do so in the placement proposed here. The court is mandated to look at all of the circumstances in s.37(3) of the Act that are applicable in this case. By far and away, they do not favour society foster care over placement with the C. The society provides very little evidence of the foster care the child is receiving. Accordingly, it is somewhat difficult to gauge the relative superiority or inferiority of placement with the present foster family as opposed to placement with the C. In terms of the circumstances in s.37(3), the child has ties to both of the C. and I infer that these are positive ties. Her religious faith seems to be involved more than casually with them. They represent much less of a disruption in her life than living in a foster home with strangers, a home that does not appear to be located in her own community. In terms of the child's needs, there is nothing that suggests that the C., especially with society supervision involved, cannot meet whatever needs the child may have. There is already evidence that the father, as a male single parent, was having difficulty meeting the child's needs. The proposed caregivers are a married couple (with one of them being female), with years of child rearing experience and with prior involvement with this specific child.

[39] Child's Relationship with Father

The child's views are not set out in the evidence, but it is a reasonable inference that she would like to see more of her father. This is not likely to happen in her present placement. However, expanded paternal access may well result if she is placed with the C. While many allegations are made about the father, he has been the child's primary caregiver almost from birth and there is clearly a positive relationship between him and the child. If the child's relationship with him cannot be fostered by living in his home, the next best thing is by having as much access as can be accommodated without the risk of her being placed in a situation where she may come to some harm.

[40] Order for Temporary Care and Custody

For all of these reasons, I am inclined to make an order for temporary care and custody in favour of Mr. and Mrs. R.C. By the time this order is made, the kin assessment may well be completed. However, it is not appropriate to delay any further than necessary. The terms and conditions of supervision sought by the society will be incorporated as part of that order.

Paternal Access

[41] Access Order

As for paternal access, there is an interim without prejudice order in effect that sets out the terms of the father's access. These, of course, have been in effect while the child has been in foster care. The father has not brought a motion for any order of paternal access different than what is currently in place, even on the contingency that the child will be placed with the kin he has proposed. I am not entirely sure that the current provisions for paternal access will be a good fit with the child residing with the C. This is particularly so if the society, for some reason, does not approve them as paternal access supervisors. Accordingly, I do not intend to make any order for paternal access. Although the court is mandated to make an order for temporary care and custody, it is not obligated to make any order for parental access. The existing without prejudice order will remain in effect. Time will tell if it is workable. If it is not, the father or the society can seek to change it. Hopefully, if it requires some change, that change can come about on consent of all concerned.

Released: July 14, 2014

Signed: "Justice John Kukurin"